In my blog last week I highlighted what I believed was the European Union’s (EU) lack of a concerted response to the growing horse meat controversy. In the following days Simon Coveney, the Irish Minister of Agriculture called on the European Commission to adopt a coordinated approach to dealing with the horse meat contamination issue which by then was affecting an increasing number of member states. This was a welcome development and resulted in a meeting of the EU’s standing committee on the food chain on February 15th. We waited to hear an announcement which would affect a coordinated response to gain control of the issue and start the journey towards rebuilding consumer confidence. As it turned out, the Committee endorsed plans for all member states to conduct analyses for horse meat over the coming months. The plan would include 2,250 DNA tests on meat samples drawn from all 27 member states. In addition, random samples of products would be tested for horse meat and a significant program of testing for phenylbutazone. Finally the EU would contribute 75% of the cost of conducting these tests. As for EU Ministers, they will discuss the matter in the coming weeks. In addition to the activities of local food safety agencies (Competent Authorities) like the FSA UK, we also saw Europol, the EU’s law enforcement agency, commence criminal investigations in a number of member states. Local police forces in the UK are also active and Eurostat, the EU data collection and processing agency are also playing a role collating data relating to the origin, movement and collation of traceability data.

So far, this represents the response. There is a lot of activity across many organisations and agencies. But one cannot help ask the question who is running the show? Is it the Commission or is it the local member states? The controversy spans many state borders with each member state understandably protecting the reputation of their home food industry. At an EU level where they come together, they have agreed a testing and sampling plan with dissention from some member states. In the meantime the beleaguered consumer sits in the middle wondering what exactly they are eating. Following on from the German E coli bean sprout outbreak we are once again witnessing a crisis in the European food industry characterised by a lack of leadership, poor risk communication and a protracted management effort with no clear mitigation strategy. Moreover we struggle to see what the EU’s actual role is in pan European food issues. The role of the political and economic entity which itself defines the food safety legislative framework remains at best unclear!

It is now becoming evident that serious and fundamental issues exist in how the EU handles food safety and quality incidents. The EU’s regulatory framework which was designed to protect the single market and consumer health is now failing and it is time for a major rethink. In order to understand the true nature of these emerging regulatory deficiencies we can benefit from looking at how EU regulations and laws developed.

When in Rome…

What do French liquor, German beer and mad cows roaming the hill sides of England have in common? They all played a significant part in shaping the EU’s existing legal and regulatory framework governing food. In 1957 the Treaty of Rome established the European Economic Community (EEC). Article 3 of the treaty provided for the elimination of custom duties and restrictions on the export and import of goods between member states. The new common market would abolish obstacles to the free movement of goods, persons, services and capital and develop common laws to support this. In these early days there was no explicit mention of the protection of public health. It took a number of major court cases and food safety incidents for a body of food safety law focused on the protection of the health of the consumer to develop.

In 1979 the ‘Cassis de Dijon’ case saw the first shift by the Commission’s approach in food law. The case involved a German law which prevented the marketing of liqueurs with an alcoholic strength of 15-20%. German law required a strength of 25-32%. The European Court of Justice (ECJ) ruled that this prohibition was discriminatory. It provided clarity for the principle that a product produced lawfully in one state had to be considered lawful in another state. Another case also involving a German law restricted the use of the designation ‘Beer’ to those using specific ingredients. This led to the development of laws permitting the use of ingredients in specific food and beverage products. These are just two examples of a large body of EU case law which ultimately led to the inclusion of additional provisions for the protection of public health, information to the consumer and official controls of foodstuffs.

In the wake of the BSE crisis there was wide acceptance that the body of food law in the EU was inadequate to prevent significant food safety issues. It led to a fundamental overhaul of EU food law with consumer protection and public health becoming paramount. This culminated in the publication of the Commission’s White Paper on Food Safety in January 2000. The central tenet of the White Paper was the proposal to establish an independent European Food Safety Authority. For many this made a lot of sense. A single European body responsible for the regulation of food safety would reflect the developing nature of the common market and the lessons learned from the BSE and dioxins scares. It all looked very promising. However when the final Regulation 178 was published the nature of this authority was not what many of us hoped for. Instead of an Authority with regulatory teeth to enforce, monitor, regulate and manage food safety we got a very different and tame animal. The European Food Safety Authority (EFSA) would serve mainly as the risk assessment arm of the Commission which would effectively retain the enforcement remit. EFSA would provide independent scientific advice and clear communication on existing and emerging risks. Some voiced their doubts that the problems highlighted by BSE/Dioxin could be effectively managed by this new regime. The Regulation was enacted by member states and despite the authority’s role now relegated to scientific advice and opinion, the many benefits of the new law overshadowed any troublesome gap in the management of pan European food situations.

Do we need a European FDA?

Can we continue to deny that the current horse meat controversy and German bean sprout outbreak have demonstrated that our ability to manage pan European crises through local competent authorities is wholly unsatisfactory? I believe if we are committed to providing for both the free movement of goods and consumer protection we can no longer ignore the elephant in the room.

In 2012, President Barack Obama signed into law the FDA Food Safety Modernization Act. It represents the most radical overhaul of food safety law in the US for 70 years and follows a series of large food safety incidents. Its impacts are being felt globally as it extends to both domestic US food businesses and foreign exporters to the USA. As the name of the Act suggests, the central principle of the legislation is the establishment of the FDA as the controlling authority for all federal food safety incidents. Why has the US administration gone down this road of a central controlling authority? It has done so from an understanding that significant food safety incidents often span many states and therefore need to be managed in this context in the interests of public health. In short they learned the lessons of the previous outbreaks, something which we are failing to do in Europe. It is time to finish what was started back in 2002 and give EFSA or some other new entity the real regulatory teeth it needs. An authority with the power to risk assess, risk manage and communicate effectively to all stakeholders. It must be capable of coordinating local member states activities in a concerted way and provide the much needed leadership essential in any crisis. Finally it should be independent of the Commission and its member states and free to conduct its work. In other words it must be the authority that should have been put in place following BSE.

This is not an agreement for a federal EU. It is not an agreement with any political intent what so ever. It is merely common sense based on the evidence of the two most significant and recent food safety incidents with pan European impact. Food safety hazards do not discriminate against national borders and nor should our food regulatory framework. The time for an EU FDA may be long overdue.

About the author

George Howlett is the CEO of Safefood 360° and one of Europe’s leading food safety experts. Before establishing Safefood 360° he worked at some of Ireland’s most prominent companies and brings the expertise with him. George also lectures in the MSc for Food Safety Management in the Dublin Institute of Technology.